The Secretary of State for India Vs. Indoorai Bhaurai Desai - Court Judgment

LegalCrystal Citation

legalcrystal.com/337746

Subject

Civil

Court

Mumbai

Decided On

Jun-08-1926

Case Number

First Appeal No. 44 of 1924

Judge

Fawcett and ;Madgavkar, JJ.

Reported in

(1926)28BOMLR1308

Appellant

The Secretary of State for India

Respondent

indoorai Bhaurai Desai

Disposition

Appeal allowed

Excerpt:.....reason for that deduction, as i have already mentioned, is clearly that government treated them as kadim allowances. having accepted this settlement and obtained the benefit of that part of it which allows this deduction, they cannot, under a well-known legal principle, repudiate merely that part of the agreement that they do not like, namely, that government should have a free hand in regard to the payment and management of these particular allowances. this cannot be allowed under the principle laid down by the house of lords in the well-known case of cro8sley v. 718 and this difficulty is, i think, well illustrated by evidence that the plaintiff's in suit no. and, therefore, i think all that appears in favour of the plaintiffs is that they possibly have a good, case for the contention..........judge's court is open to some criticism. this is: ' whether the deductions made are on account of kadim allowances or gaum kbarch and if the latter whether the government has any right to make the said deductions ?' that overlooks the point that they may be 'gaum kharch' and yet be kadim allowances ; the latter category does not exclude the former. it is probably on account of this misunderstanding that unfortunately no evidence has been adduced on the question, whether, in fact, these allowances were kadim or jadid ones. in a statement of the inamdar vallabhdas, which i have already alluded to (exhibit 62), he positively stated that the allowances in his three villages were jadid, and that he had evidence to that effect. whether or not he adduced such evidence does not appear from the.....

Judgment:

Fawcett, J.

1. This litigation arises out of certain allowances that for many years were paid by the Inamdar plaintiffs for the benefit of certain religious institutions and ceremonies, and for food and liquor to villagers on special occasions. The allowances are in six Inam villages in the Fanch Mahals District. Three out of these, by name Ranipur, Pavdi, and Jetpur, are the subject-matter of the suit which is before us in First Appeal No. 44 of 1924 The fourth village is that of Earamba, which is the subject-matter of the suitin F.A. No. 43 of 1924. The other two villages are Sompoi and Frathampur, which are the subject-matter of the suit in F.A. No. 45 of 1924. All these three suits, which were heard by the Joint Judge, Ahmedabad, involve the same questions, and our decision can be given in regard to all these appeals in one judgment.

2. The main facts are that these allowances were directly paid by the Inamdars in question, but that in 1897 the Government passed a resolution, ordering that this practice should be stopped and that these amounts should be paid to Government. In consequence, certain notices were sent to these Inamdars, ordering them to refund amounts that were, due for years subsequent to 1915. These suits were brought to obtain declarations and injunctions, which would prevent the Collector giving effect to those orders. The contention of Government is that these allowances were deducted from the amount of assessment that was taken into consideration for fixing the 'summary settlement' dues from the Inamdars ; that this was done because these allowances were in respect of what is known as 'Kadim Haks,' that is to say, grants made prior to the grant of the village in favour of the Inamdars, and independently of them, by the former Government; and that, under the express terms of the settlements contained in the Sanads, that were subsequently issued, these cash allowances are subject to the orders of Government, so that the orders of 1897 are legal. The contention of the plaintiffs-respondents in these appeals is that these allowances were not Kadim, but merely village expenses which do not fall under the terms of the Sanad as to Kadim haks. A further contention is that the Sanade were not accepted by the then Inamdars and are not binding upon the plaintiffs. The Joint Judge has substantially accepted the plaintiffs' contentions. He has held in paragraphs 17 and 24 of his judgment that the Sanads were not accepted by the Inamdars and cannot properly be the basis of a contract between the Government and thorn. He has further held that the Settlement and the Alienation Registers do not show that the alienations in questions were Kadim haks. Consequently, he has held that Government have no right to recover anything on account of these allowances, and has granted the declarations and injunctions sought by the plaintiffs,

3. I shall first deal with the question about the acceptance or non-acceptance of the Sanads. These appear to have been issued at various times after the year 1900. Exhibit 35 is a statement containing details as to the dates on which such Sanads were given to various persons concerned. This statement is certainly one which, under Section 114 of the Evidence Act, justifies the presumption that the Sanads were in fact given as mentioned in it. In regard to the first three villages that I have mentioned, namely, Jetpur, Pavdi, and Kanipur, the entries show that copies of Sanads were given in respect of the first two villages at various dates in 1906-1907. There is no entry as regards the third village, and the Joint Judge says that the Sanad is consequently not shown to have been delivered for this particular village. This, however, is opposed to the admission in paragraph 2 of the plaint that the Sanad for Kanipur was handed over to the plaintiff on December 23, 1903. The farther statement there made that the Sanads for Jetpur and Pavdi were handed over in 1906 agrees with the entries in Exhibit 25. In regard to the village of Karamba, Exhibit 35 states that the Sanads were handed over to various persona in 1908, Similarly, in regard to the villages of Pratham-pur and Sompoi, there are entries of Sanads having been handed over in 1908. It is true that the name of plaintiff No. 1 Vallabhdas, since deceased, is not among the names given in Exhibit 35, but except in the case of Karamba he is not shown as the sole holder of the Inam rights, and copies of Sanads, according to the entries in Exhibit 35, were given in the case of three villages to Desai Daniodar Mayachand, who would appear to be the brother of Desai Vallabhdas Mayachand. In a statement purporting to have been made by the same Vallabhdas Mayachand in 1911 before the District Deputy Collector, marked Exhibit 62 in the paper book of F.A. No. 43 of 1924, he makes a statement that the Sanads in respect all all the three villages, that is to say, Karamba, Prathampur and Sompoi, have not been taken 'on account of contentions regarding the taking out of Sanads in the name of the elder person'. That points to there being some dispute as to who was the senior person, which was the reason for his not taking copies of the sanads. That, however, is a very different thing to a refusal to take the Sanad because of objection to the agreement which it signifies. It seems to me perfectly clear that the authorities did give the copies of the Sanads to all persons concerned, who were willing to take them. In the suit ragard-ing the three villages, Jetpur, Pavdi and Ranipur, it is, in fact, admitted in. evidence that Sanads wore sent to the Inamdars which they retained, and Exhibits 48-50 aie the sanads so retained. It is true that the form of Sanad contemplates the Inamdar affixing his signature in Gujarati as evidence that he accepts its terms and conditions, and that the copies, Exhibits 48 to 50, do not contain any such signature. But that clearly does not in any way vitiate the validity of the Sanad. Under Section 2 of Bom. Act VII of 1668, what is con' templated is the issue of a Sanad as the final authorisation of the settlement. There has been such an issue, and the mere fact that, on these particular Sanads, there are no signatures, such as was contemplated, does not affect the fact that Sanads have been issued and have been acted upon. It may be that on other Sanads such signatures have been taken'Even if that has not been done, that in no way invalidates the Sanada in the absence of any legislative provision making such signatures essential to the validity of the Sanads. Therefore, I do not think that the Joint Judge is justified in holding that, in fact, Sanads were not accepted by the Inamdars concerned. The only proved exception, viz., the one in regard to the Inamdar Vallabhdas already mentioned, was due to a dispute as to seniority, and does not affect the fact, that the Sanads did in fact issue and were acted on, Both sides have relied upon the ruling in Secretary of State for India v. Sheth Jeshingbhai Hathisang I.L.R. (1882) 17 Bom. 407 That was a case where there was a common mistake of fact as to an essential matter that arose for a proper settlement, and it was held that the Sanad itself could not prevent the underlying agreement being vitiated because of that common mistake of fact. So, in this case, if it was shown that there had been any misrepresentation, for instance, sufficient to invalidate the settlement, that undoubtedly could be put forward as a proper reason for upsetting the settlement, in spite of the fact of the Sanad having been issued, but no such case has been set up either in the lower Court or before us.

4. The main contention is that the Sanad is not right in showing these allowances as Kadim or anterior to the graitts of the village to the Inamdar, and that the real terms of the settlement are more accurately shown in the Settlement Statement (Exhibit 34) and the Alienation Register (Exhibit 78), which make no reference to these alienations being Kadim. It is also strongly contended by Mr. Jayakar that such alienations cannot in any case be properly treated as Kadim haks of the kind contemplated by the Sanads, and that they are not alienations to Hakdars such as are often found in such villages and as are referred to in the case of Chintaman v. Secretary of State. (1916) 17 Bom. L.R. 682 Therefore, the argument is that the Sanads do not correctly show the exact settlement arrived at, I have carefully considered this question, and I do not. think that this contention is substantial. The Sanads deal not merely with grants of lands but also with cash allowances, Column 11 of the Sanads is specially provided for such cash allowances, and the second condition of the grant speaks of 'alienations whether land or cash more ancient than the grant of the village,' So far as the religious allowances are concerned, there is, prima facie, no reason why such allowances might not have been granted by the previous Government prior to the grant of the villages to the ancestors of the present Inamdars. Thus, in a Government. Resolution of 1862 on the general subject of Cash Allowances in Gujarat, which is reprinted in the 'Standing Orders of Government in the Revenue Department,' Vol. 1, pages 84-85, paragraph 8 says:-

The village devasthans uaually originated in grants by village officers from the village funds. In stating that these devasthan grants are as old as the villages themselves, Mr. Mansfield appears to have had in view only the 'Gaom Dev,' or village temple, founded when the village was established. He has overlooked a number of grants subsequently obtained by the managers of other temples from the Patels who, until quite recently, had the management of village funds

5. This, at any rate, is authority for saying that there might be an allowance payable to those who looked after the village temple which would be of very ancient date prior to the grant of the village as personal Inam. And even in the case of allowances for food and liquor on special occasions, that may prima facie have been granted prior to such grant, Mr. R.N. Joglekar, a gentleman who has had very great experience of all alienation matters, has published a book on the subject, and I think that his authority can be accepted with complete confidence. In his 'Alienation Manual,' brought up to 1921, at pages 103, 104 etc. he gives an illustration of entries as to an Inam village, showing its history and the changes that are made with regard to the payment of quit-rent, etc, At page 103 he puts the case of certain cash allowances to the value of Rs. 48 being granted by the former Government in 1655 to various institutions or persons. For instance :-

6. Among these instances he gives 'Rs. 9 to Chilhar expenses i.e. , unforeseen charges on account of guests, public shows on festive occasions etc. Idiana charges (amounts spent on sports) etc.' There he uses the same word 'idiana,' which has been used in connection with some of these particular allowances. Mr. Joglekar did not consider it strange that those cash allowances should be Kadim. Then at page 104 he assumes that in 1680 the former Government granted the village V as personal Inam to one X, exclusive of grants in land to Kadim (old) Inamdars and in cash to Kadim hakdars, and that the Inamdar in 1780 gave a Jadid cash allowance of Rs. 2 to the Maruti's temple used as Chavdi. There he draws a distinction between this Jadid cash allowance as opposed to the Kadim cash allowances previously mentioned. In the year 1863, proceedings are taken for summary settlement, and the Inamdar under Bom. Act II of 1863 accepts a settlement on the basis of paying an annual Nazarana of one anna in the rupee, and Mr. Joglekar shows how that Nazarana is calculated. This is based on the original Mamul Revenue assessment of the village, namely. Rs. 230 as shown at page 103, Then from that is deducted a sum of Rs. 70. This is the proportion of that Mamul assessment of Es, 230 that, represents the assessment on the seven survey numbers that had been granted to Kadim hakdars by the former Government. Next, there is deducted the sum of Rs. 48, which I have mentioned, as being the total of Kadim cash allowances, including expenses for festive occasions like those we have in the present suit. These are shown as deducted because they are 'Kadim charges in land and cash.' On the other hand, no deduction is made on account of the Jadid cash allowance of Rs, 2 that the Inamdar had given. Very little reflection serves to show that obviously such a deduction must be made because of the grantees being independent Inamdars, and, therefore, such Kadim grants were excluded from the settlement and Government reserved to themselves the power to deal directly with the holders of such grants That consideration cannot apply in the case of Jadid Cash allowances which the Inamdar himself has granted. Accordingly, I do not think that there is any real basis for the suggestion that there cannot be a Kadim hak of the kind that is here in question.

7. That brings me to another point, namely, it seems to me insufficient for the plaintiffs to say that these are. not Kadim haks because they are village expenses. Village expenses, such as I allude to, can, as mentioned in Mr. Joglekar's book, be either Kadim or Jadid ; and it is only by evidence as to when these allowances actually first started, and by whom they were granted, that it can be decided whether certain village expenses are Kadim or Jadid, assuming, of course, that they are in the nature of a grant and not a mere revocable gift. Therefore, I think, the framing of the third issue that was raised on this point in the Joint Judge's Court is open to some criticism. This is: ' Whether the deductions made are on account of Kadim allowances or gaum kbarch and if the latter whether the Government has any right to make the said deductions ?' That overlooks the point that they may be 'gaum kharch' and yet be Kadim allowances ; the latter category does not exclude the former. It is probably on account of this misunderstanding that unfortunately no evidence has been adduced on the question, whether, in fact, these allowances were Kadim or Jadid ones. In a statement of the Inamdar Vallabhdas, which I have already alluded to (Exhibit 62), he positively stated that the allowances in his three villages were Jadid, and that he had evidence to that effect. Whether or not he adduced such evidence does not appear from the papers now before us. It certainly would have been more satisfactory if any such evidence that was available had been given in these suits. However, the burden of proof that these allowances are not Kadira seems to me to rest primarily upon the plaintiffs, who made that assertion in the plaint and who seek to prevent Government treating them as Kadim grants,

8. That burden falls more heavily upon them in view of the fact that the Sanads treat them as Kadim grants and allow a deduction of the amounts of these allowances for calculating the amount of quit-rent at annas two in a rupee that the Inamdars have to pay. The Sanads, I have already held, were accepted in the ordinary sense of the word by the Inamdars. The quit-rents fixed by those Sanads have been paid ever since the time of settlement, even before the Sanads were issued. And those Sanads, being the prescribed authority for the continuance of the villages in the names of the Inamdars under Bom. Act VII of 1863, involve an implied admission that these cash allowances were Kadim, I do not think that the entries in the Settlement Statement or in the Alienation Register, which are relied upon, in any way outweigh the express statements in the Sanads on the subject. In the Settlement Statement no doubt column 10 merely describes these amounts as ' cash expenditure which have been given credit for.' That was a statement drawn up in 1886, and the fact that the entry in question does not say that these allowances are Kadim does not, in my opinion, in any way imply that the District Deputy Collector, who signed it, meant that these allowances could not be Kadim. It is merely a heading in a particular form, and cannot be treated as if it was a deed, which would have to be carefully drawn up, The heading rightly says that this is an expenditure which has been given credit for. Its omission to gay more on the subject cannot, I think, be treated as an admission by the District Deputy Collector, and certainly not as one by the Government who never saw this statement. Then, as regards the Alienation Register, Exhibit 78, it must be remembered that this is a form which is laid down under the provisions of Section 53 of the Bombay Land Revenue Code for use as regards all alienations in the whole Presidency of Bombay. It is therefore, drawn in general terms, It is not prescribed merely for the particular form of alienation that comes under the head of 'summary settlements'. There is no heading in the form as regards Kadim or Jadid grants in summary settlement villages, and therefore the mere fact that these allowances are simply shown in columns 12 and 13 as village expenses deducted in the calculation of assessment does not suffice to show that Government in any way admit that these cash allowances are not to be dealt with as specifically mentioned in the Sanads that were issued.

9. There are two main difficulties in the way of the plaintiffs in this case. First of all, they have accepted the settlement by which these amounts are deducted to their benefit for the purpose of fixing the payment of quit-rent to Government, and the reason for that deduction, as I have already mentioned, is clearly that Government treated them as Kadim allowances. Having accepted this settlement and obtained the benefit of that part of it which allows this deduction, they cannot, under a well-known legal principle, repudiate merely that part of the agreement that they do not like, namely, that Government should have a free hand in regard to the payment and management of these particular allowances. This cannot be allowed under the principle laid down by the House of Lords in the well-known case of Cro8sley v. Dixon (1863) 10 H. L. C. 293which has often been followed by this Court as, for instance, in G. I. P. Ry. v. Tamboli. (1925) 28 Bom. L.R. 718 And this difficulty is, I think, well illustrated by evidence that the plaintiff's in Suit No. 5 of 1917 themselves adduced. I refer to the witness Manvantray, Exhibit 86. He is an Inamdar of five Inam villages in the same District. There also the question arose of similar village expenses, which Government tried to recover from the Inamdar on the plea that they represented Kadim haks, The Inamdar appealed to the Commissioner, who held that about Rs. 59 of the amount in question were for Kadim hak and the balance, Rs. 510, was Jadid, that is to say, expenses personally incurred by the Inamdar after they got the village in Inam. And then he says:- 'Government decided to charge assessment of two annas per rupee on the balance of Rs. 510. There is suit against Government for their acting contrary to our conditions.' Of course, I do not in any way mean to prejudge the result of that litigation, but, speaking so far as I can from the materials before me now, it seems to me that the view said to have been taken by Government is one which is correct for the reasons which I have given. If the plaintiffs want to have these allowances treated as Jadid, then they must forego the advantage of having them deducted in the calculation of the quit-rent payable.

10. The second objection is that the plaintiffs, by having accepted the settlement, as evidenced by the Sanads, are prima fade bound by the terms therein contained, and whether these allowances were rightly or wrongly treated as Kadim they can only upset that settlement on some basis recognised by contract law, such as mistake, fraud, or misrepresentation. No such case has been set up here, and, I think, all that has been shown is that it is open to question whether these allowances should really have been treated as Kadim. There is reason to doubt whether the statements made in 1885 by the ancestors of the plaintiffs in Suit No, 5 of 1917 and in 1863 by the ancestors of the other plaintiffs as to the annual expenses of the Inamdar in each village were meant by them to show only Kadim allowances. The headings of those statements do not show that there was any distinction intended between Kadim and Jadid allowances, and the previous correspondence of 1876 that has been put in also does not contain anything showing that attention was directed to that particular distinction. But, beyond the suggestion that this point was not sufficiently gone into at the time of the settlement and that the Inamdar perhaps either did not have, or did not take advantage of, any opportunity of showing that these allowances were not Kadim, I do not think that anything is proved, which can possibly be taken as evidence of misrepresentation on the part of the officers who had made the settlement or of the officers who finally issued the Sanadg. The statement of the Inamdar Vallabhdas, Exhibit 62, itself says that 'at the time of the settlement in connection with the Sanads of all these three villages credit was given for the same, the same being treated as on account of ancient right holders : as to that I was given to understand that, under the terms of the Sanad, Government had a right to the same. 'The Settlement Officer however had not, given me to understand that the same would not be considered as such right.' What exactly the last sentence means is difficult to say : but in any case, there is no assertion of an intention to mislead the Inamdar, and no evidence of such an intention. And, therefore, I think all that appears in favour of the plaintiffs is that they possibly have a good, case for the contention that the allowances are not Kadim. But, unfortunately, they did not produce any evidence to show this in these suits, so that it is a matter which can only be gone into apart from the suits, if Government give them that indulgence. So far as these suits are concerned, it seems to me that the plaintiffs have not shown that they have a right to the declarations and injunctions they seek, and that the suits should be dismissed.

11. I would, therefore, admit the three appeals, reverse the decrees of the lower Court, and pass orders dismissing the three suits and directing the plaintiffs to bear the defendant-appellant's costs throughout.

Madgavkar, J.

1. These three appeals relate to small amounts which until 1914 the appellant Government did not recover from the plaintiffs-respondents Inamdars but which they have since then been claiming to be recoverable as Kadim haks. The suits were instituted by the Inamdars for a declaration that Government were not entitled so to take them. The plaintiffs Inamdars succeeded in the lower Court. Government now appeal.

2. The question in these three appeals is whether these amounts are Kadim haks, so that Government are entitled to take them from the Inamdars or whether they are not such and Government are not so entitled, According to the Inamdars they are village expenses and not Kadim haks.

3. The law does not define either of these terms. The terms themselves on the face of them are vague. Village expenses, it might be contended, include all kinds of haks including 'Kadim,' that is, literally ancient rights, including ancient alienations, properly so-called. But, for the purpose of these suits, Kadim haks may be taken to mean allowances, whether by custom or otherwise, recognised prior to the grant of the villages, eo that the Inamdar has undertaken and is bound to continue them and cannot interfere with them, and consequently Government, if they choose, are entitled to take from the Inamdar and disburse the amounts themselves, In this view, it is not necessary to consider the details of these allowances. They include, for instance, food and liquor to the villagers.

4. All the villages are situated in the Panch Mahals and were ceded by the Maharaja Scindia in 1861. And upon cession as was pointed out in The Secretary of State for India v. Sheth Jeshingbhai HathisangI.L.R. (1892) 17 Bom. 407 the plaintiff Inamdar only obtains such rights in these villages as the British Government recognises. The document of recognition is obviously the Sanad in each case, and each of the Sanads now in question expressly mentions the respective amount in suit in the concluding column ' Alienation more ancient than the grant of the village,' in other words, 'Kadim haks.' It is also admitted that, in calculating the amount of Judi or one-eighth payable by the Jnamdar to Government, these amounts were deducted from the total assessment of the village before the one-eighth was calculated. This would not be the case with village expenses pure and simple or Jadid Inams, that is, loams after the grant. The only points in favour of the plaintiffs-respondents are the Settlement and the Alienation Registers. These entries, however, are made by the local authorities and not by Government. They are not decisive. 'The mere fact that these amounts were shown along with other village expenses does not necessarily prove that they were not Kadim haks, the more that the village expenses not Kadim haks also include amounts for liquor or other objects with which the Inamdars and not Government are concerned.

5. The other point in favour of the Inamdars is that until 18S6 the question does not appear to have been raised, and till 1914 in the case of these villages the amounts were not recovered from the Inamdars but were left to be spent by them, That, however, was a matter for Government if they thought it more convenient that the Inamdars should dispose of them. It is possible that the local authorities, rightly or wrongly, doubted whether the amounts so shown were actually spent, and that the arrangement was found not to be satisfactory; and it was, therefore, that the present question arose and ultimately Government decided to recover the amounts and to disburse them.

6. As regards the signature on the Sanad, the matter, in my opinion, is of small importance.

7. For these reasons, it appears to me that, from the outset, the Inamdar admitted and the Sanad recognised that these Inams were Kadim haks which the Inamdar, on the one hand, could not, even if he desired, abstain from spending on the proper objects and which Government had a right, if they chose, to retain and to expend and to which on the other, the Inamdar was entitled to deduction before the calculation of the one-eighth Judi.

8. The appeals, in my opinion, should be allowed, the decrees of the lower Court set aside and the three suits dismissed with costs throughout, against the plaintiffs-respondents.